Date: 19980423
Docket: T-1850-97
IN THE MATTER OF THE CITIZENSHIP ACT,
R.S.C., 1985, c. C-29
AND IN THE MATTER OF an appeal from the
decision of a Citizenship Judge
AND IN THE MATTER OF
FELIX LING CHUNG WONG,
Appellant
REASONS FOR ORDER
ROULEAU, J.
[1] This is an appeal from the decision of a Citizenship judge dated July 18, 1997 in which the appellant was denied Canadian citizenship. It was determined that Mr. Wong did not meet the residency requirement under paragraph 5(1)(c) of the Act which requires that an applicant for Canadian citizenship must have accumulated at least three years of residency in Canada within the four years immediately preceding his or her application. The Citizenship judge found that the appellant had only been physically present in Canada 373 days leaving him 722 days short of the required 1,095 days to meet the residency requirement.
[2] In particular, the Citizenship judge determined that the appellant's presence in Canada was only for temporary stays. Accordingly, the judge determined that this was insufficient to consider whether or not the appellant had centralized his mode of living in Canada. Finally, pursuant to subsection 15(1) of the Act, the Citizenship judge did not find any grounds under subsections 5(3) and 5(4) of the Act to recommend an exercise of Ministerial discretion.
[3] Since appeals to the Federal Court under subsection 14(5) of the Citizenship Act are trials de novo, all of the evidence including the appellant's testimony and that of any other witness can be considered.
[4] In his Notice of Appeal the appellant submits as follows:
| ... The period of absences were for temporary purposes only, and he maintained at all times his residence and centralized mode of living in Canada rather than any other country... |
[5] The appellant was born in Hong Kong on June 28, 1952. He was admitted to Canada as a permanent resident with his wife on July 12, 1992. However, prior to his arrival the appellant set up a company in British Columbia called Famrich Real Estate (Canada) Inc. in early 1989. On May 13, 1993, the appellant changed this company's name to Famrich Holdings Ltd. This appellant first came to Canada under the Investment category and did in fact invest some $250,000 with a Canadian bank for reinvestment into a program directed and controlled by the institution. He is an accountant by trade, as well he completed his law degree at the University of London. After his arrival in Canada, between July 1992 and February 1993, a period of some eight months, he attempted to get involved in a number of other business endeavours which were unsuccessful.
[6] In April of 1993, because of his knowledge of Mandarin, the appellant was approached by the China Champ Group inviting him through his company into a joint venture in Sichuan, China. This group was involved in a paper company principally engaged in the manufacturing of cigarette paper. As a result of his involvement in this joint venture, he is required to travel to mainland China for many days during the year. In the course of his involvement with the China Champ Group, he has been exporting wood pulp from Canada as a raw material for manufacturing the cigarette paper and, through his Canadian company, he has exported to the mainland China manufacturing operation, some $3,000,000 to $4,000,000 in Canadian pulp.
[7] Prior to leaving Hong Kong, the appellant sold his home and whatever business interests he had and came to Canada with his wife. All of his personal possessions accompanied them.
[8] Since arriving in Canada, the appellant has purchased a home. He has paid both property tax and federal income tax. He maintains a valid B. C. driver's licence, pays medical premiums and holds active bank accounts as well as RRSP investments. He has been a member of the Terminal City Club in Vancouver since October, 1992.
[9] In Papadogiorgakis, (1978) 2 F.C. 208, Thurlow A.C.J. established the principle that full-time physical presence in Canada is not an essential residential requirement. Furthermore, a person with an established home in Canada does not cease to be resident when he leaves for temporary purposes, whether on business, or vacation, or to pursue a course of study.
[10] In Huang, (1997) F.C.J. No. 112 (F.C.T.D.), concerning the refusal of citizenship application of a permanent resident of the entrepreneur class based on residence, Dubé J. stated:
| Where an applicant for citizenship has clearly and definitely established a home in Canada with the transparent intention of maintaining permanent roots in this country, he ought not be deprived of citizenship merely because he has to earn his livelihood and that of his family by doing business offshore. Some Canadian residents may work from their own homes, other return home after work every day, others every week , and others after longer periods abroad. |
[11] In this case, the appellant prior to arriving in Canada owned his own business as well as a home which he disposed of before emigrating. He attempted various ventures however it was not until he was offered an opportunity to engage in a joint venture with a mainland China company was he able to be successful. This new opportunity required that he travel extensively; however, it was to mainland China not Hong Kong. It is clear from the evidence that this appellant maintained ties with Canada and was an active member in Canadian society. He has no other pied-à-terre, no where else in the world one could describe as a residence or a home.
[12] As Dubé J. stated in Huang, supra, the appellant ought not be deprived of citizenship merely because he had to earn his livelihood outside of Canada. For these reasons, I grant this appeal.
JUDGE
OTTAWA, Ontario
April 23, 1998